Sareth Kim v. Alberto Gonzáles, Attorney General

Of the District of Massachusetts, sitting by designation. *
United States Court of Appeals
For the First Circuit
No. 05-2462
SARETH KIM,
Petitioner,
v.
ALBERTO GONZÁLES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Saris, District Judge. *
Roberto Gonzalez and Audette, Bazar, Berren & Gonzalez Inc. on
brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Terri J. Scadron, Assistant Director, Office of Immigration
Litigation, and Margot L. Nadel, Office of Immigration Litigation,
Civil Division, Department of Justice, on brief for respondent.
November 16, 2006

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BOUDIN, Chief Judge. Sareth Kim is a native and citizen
of Cambodia currently residing in the United States. In January
1983, Kim's status was adjusted to that of "lawful permanent
resident" of the United States. In December 1993, Kim shot and
killed another man who--Kim's sister told him--had sexually
assaulted her. In November 1994, Kim pled nolo contendere in Rhode
Island state court to a charge of manslaughter, R.I. Gen. Laws §
11-23-3 (1993), and was sentenced to 10 years in prison.
In January 1995, deportation proceedings were begun
against Kim on the ground that he had committed an "aggravated
felony" rendering him deportable under 8 U.S.C. §
1251(a)(2)(A)(iii) (1994) (now renumbered § 1227 (2000)). That
category includes a "crime of violence," id. § 1101(43)(F), which
is itself defined to include any crime
that has as an element the use . . . of
physical force against the person . . . of
another . . . [or any felony] that, by its
nature, involves a substantial risk that
physical force against . . . another may be
used in the course of committing the offense.
18 U.S.C. § 16 (1994).
In the administrative proceeding, the immigration judge
found from the evidence that Kim had confronted the victim with a
gun and shot the victim as he sought to drive away; that the crime
was embraced by section 16's definition whether it comprised
voluntary or involuntary manslaughter under Rhode Island law; and
that Kim was not eligible for discretionary relief under section

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Exec. Office for Immigration Review, Section 212(c) Relief 1
for Aliens With Certain Criminal Convictions Before April 1, 1997,
69 Fed. Reg. 57,826 (Sept. 28, 2004) (codified at 8 C.F.R. pts.
1003, 1212, 1240 (2006)).
That subsection stated in relevant part that "[a]liens 2
lawfully admitted for permanent residence who temporarily proceeded
abroad voluntarily . . . and who are returning . . . may be
admitted in the discretion of the Attorney General without regard
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212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c)
(1994) (now repealed), because such relief was precluded for all
aggravated felons by a 1996 statutory amendment to the immigration
laws, Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), Pub. L. No. 104-132, § 440(d), 110 Stat. 1214, 1277.
Kim sought review before the Board of Immigration Appeals
("Board" or "BIA") which in 1998 affirmed in a brief per curiam
decision. Kim did not seek judicial review. However, on April 19,
2005, Kim filed a motion to reopen with the BIA renewing his
request for section 212(c) relief. This new motion was based on a
new regulation allowing such applications to be filed by April 26,
2005.1
The events leading up to the regulation are complicated
but relevant to this proceeding. The immigration laws mandate
exclusion--usually, a turning away at entry points--of aliens who
have committed certain criminal offenses. See 8 U.S.C. § 1182(a)
(2000). Until its repeal, section 212(c) allowed the Attorney
General to grant a discretionary waiver from excludability in
certain instances. On its face, section 212(c) might appear to do 2

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to the provisions of subsection (a)." 8 U.S.C. § 1182(c) (1994).
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Kim no good because (1) he is not being excluded and (2) it has
since been repealed. However, in 1976, another circuit court ruled
that it was a denial of equal protection not to extend the same
waiver opportunity to those being deported as was available to
those being excluded, Francis v. INS, 532 F.2d 268, 273 (2d Cir.
1976), and the BIA thereafter accepted this position. In re Silva,
16 I. & N. Dec. 26, 30 (BIA 1976).
In 1990, Congress limited section 212(c) waivers by
prohibiting any alien convicted of an aggravated felony who had
served a term of at least five years from applying for such relief.
Immigration Act of 1990, Pub. L. No. 101-649, § 511, 104 Stat.
4978, 5052. In 1996, Congress further limited the availability of
section 212(c) waivers with the passage of AEDPA section 440(d),
and then repealed section 212(c) entirely, Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-
208, § 304(b), 110 Stat. 3009-546, 3009-597.
Thereafter, the Supreme Court determined (for reasons
that need not concern us) that despite section 212(c)'s repeal,
those who had pleaded guilty or nolo contendere before the 1996
amendments should retain the opportunity to seek such waivers. INS
v. St. Cyr, 533 U.S. 289, 326 (2001). The Attorney General then
adopted regulations allowing those (like Kim) protected by St. Cyr
to reapply for section 212(c) relief by a date certain, see note 1,

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above, and Kim's request for such relief was filed before the
deadline.
Although Kim's application was not untimely, the BIA in
the decision now before us for review determined that Kim was not
eligible to apply for such relief. Its stated reason was that he
had been ordered deported for having committed a crime of violence-
-a type of aggravated felony--and there was no counterpart ground
of exclusion in section 212(a) from which one could seek a waiver
of excludability under section 212(c). The Board added that it
"appear[ed]" that Kim had served more than five years and that
"[i]f this is true," he would in any event be ineligible for
section 212(c) relief.
Kim has now petitioned for review by this court of the
BIA's decision. Kim seeks reversal on two different grounds:
first, that the immigration judge erred in classifying Kim's
manslaughter conviction as a crime of violence, and second, that in
any event the BIA erred in saying that he was not eligible to be
considered for section 212(c) relief. Kim also says that the BIA
erred in suggesting that he had served five years in prison, but we
doubt that the Board meant this conjecture as a ground for denying
relief (it said "[i]f") and in any event do not ourselves rely upon
it.
Kim's first claim--that no crime of violence occurred
even though Kim approached the victim with a cocked gun and shot

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him in the head as the victim fled--might seem frivolous to one not
acquainted with immigration law. But Congress' wording, coupled
with relevant court decisions, has resulted in a disregard of what
actually happened and a focus instead upon the question whether the
crime as defined by statute had to involve the identified
characteristic (here, violence). E.g., Dickson v. Ashcroft, 346
F.3d 44, 48 (2d Cir. 2003).
Kim argues that manslaughter can be committed by
accident, and so under a categorical test does not qualify as a
crime of violence. This argument is foreclosed. Kim never sought
judicial review of the BIA's ruling in 1998 which affirmed the
immigration judge's finding that he was an aggravated felon; the
time limit for doing so is jurisdictional, Ven v. Ashcroft, 386
F.3d 357, 359 (1st Cir. 2004), and cannot be end-run by a
collateral attack several years later. In fact, Kim did not even
raise the issue in the new BIA proceeding seeking section 212(c)
relief and the BIA did not address it.
This brings us to Kim's second, more substantial claim
which is fully preserved--namely, his claim that he is eligible to
be considered for section 212(c) relief. Even if we agreed, this
would not by itself entitle him to remain in this country. It
would merely permit the Attorney General to grant a discretionary
waiver of deportability. See 8 U.S.C. § 1182(c)(1994) (repealed).
Nor is it clear how far any court would have authority to review a

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denial of the waiver. See Avendano-Espejo v. Dep't of Homeland
Sec., 448 F.3d 503, 505 (2d Cir. 2006) (per curiam).
However, for several different reasons, this kind of
eligibility may itself be quite valuable to an applicant. The
legal issue raised by Kim is not without difficulty because--
although formally an issue of statutory construction--the
possibility of such a waiver for deportees could not have been
considered by Congress. Rather, it was created by post-enactment
decisions of the courts.
As already explained, section 212(c) as written was part
of a scheme that juxtaposed various grounds for exclusion (listed
in section 212(a)) with qualified authority of the Attorney General
(described in section 212(c)) to waive individual grounds in the
case of certain permanent residents who were seeking to reenter
this country. Under the Second Circuit's equal protection
analysis, accepted by the BIA, any statutory waiver opportunity
available to an excludable person must be available to a deportable
person. See Francis, 532 F.2d at 273.
But "aggravated felony" and "crime of violence," although
statutory grounds for deportation under specified conditions, were
not themselves statutory grounds for exclusion; therefore the
exclusion statute does not provide authority for waivers
corresponding to those grounds. Accordingly, Kim has not been
denied equal protection; Congress has not provided waivers for

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exclusion on these grounds, so it need not provide waivers for
deportation on these grounds.
To get around this syllogism, Kim argues that because his
crime was voluntary manslaughter, he was guilty of "a crime
involving moral turpitude," which is a statutory ground of
exclusion, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2000), and which also
was waivable–-before section 212(c) was repealed--so long as the
individual had not served a term of imprisonment of at least five
years for one or more aggravated felonies. See 8 U.S.C. § 1182(c)
(1994) (repealed). So, Kim contends, the waiver authority should
be extended to him under St. Cyr and the regulations.
Now, it is probable that Kim's crime was voluntary
manslaughter but this is not certain; the immigration judge found
it unnecessary to decide whether it was voluntary or involuntary
manslaughter. Nor is it certain whether manslaughter of either
type would be classified as a crime of moral turpitude under
section 212(a). The phrase "moral turpitude" is one of the most
ambiguous in the long list of ambiguous legal phrases, and the
cases are far from consistent.
Some decisions use language that would apply to almost
any serious crime with an aggravating element, e.g., Nguyen v.
Reno, 211 F.3d 692, 695 (1st Cir. 2000) ("[A]n assault may or may
not be a crime of moral turpitude"; "the dividing line is the
aggravating element."). Other decisions stress the element of

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corruption or deceit. E.g., Padilla v. Gonzales, 397 F.3d 1016,
1020 (7th Cir. 2005) ("Crimes . . . that include dishonesty or
lying as an essential element . . . tend to involve moral
turpitude.").
In all events, we conclude that it would not matter even
if Kim's actions in this instance could be considered a crime of
moral turpitude as well as an aggravated felony and crime of
violence. As we read section 212(c), what the Attorney General had
authority to waive, under certain conditions and before section
212(c)'s repeal, were particular grounds of exclusion; St. Cyr and
the regulations now extend such waiver authority to counterpart
grounds of deportation and preserve it for applicants who meet the
time deadline.
But, as we have noted, there is no waiver authority for
one who is excluded as an "aggravated felon" or one who commits a
"crime of violence" (these not being grounds of exclusion). So it
is beside the point that a different ground of deportation (e.g.,
the "crimes of moral turpitude" ground) might have been waived if
it also had been invoked against him. If someone was found
deportable on two different grounds, waiver of one would hardly
avoid the other--for which waiver had not or could not be invoked.
Nor, as the Board has previously and correctly ruled, is
there any basis for saying that, in general, crimes of moral
turpitude and aggravated felonies or crimes of violence are

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essentially the same category. In re Brieva, 23 I. & N. Dec. at
772-73. Aggravated felonies and crimes of violence are both
categories of crimes or types of crimes, 8 U.S.C. § 1101(a)(43)
(2000), 18 U.S.C. § 16 (2000); depending on the breadth of the
phrase "moral turpitude," it would include some but not necessarily
all of those crimes and would surely encompass others not on the
list of defined crimes.
Our approach is the one taken by the Board, In re Brieva,
23 I. & N. Dec. 766, 772-73 (BIA 2005), and the Ninth Circuit,
Komarenko v. INS, 35 F.3d 432, 435 (9th Cir. 1994)--the latter
being the only considered circuit precedent in point. The Ninth
Circuit case involved a different set of grounds, but it used the
same framework for analysis that we follow here. Aside from
constitutional issues, the Board's reading of the statute and its
regulations is entitled to weight.
If this rather mechanical reading of the law frustrated
any evident congressional intent or policy, we would look twice;
but the opposite is true. Congress never itself created waiver
authority for those deported for aggravated felonies or crimes of
violence (this resulted from judicial decision and administrative
action), and Congress' own views on the subject of waivers are
reflected in its repeal of section 212(c) in its entirety--an
intention compromised by St. Cyr but only as to the effective date
of the repeal.

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If one followed the approach urged upon us by Kim, it
would instead enlarge the frustration of Congress' own policy
preference. Given the possible breadth of the moral turpitude
concept, almost anyone could argue that although found deportable
for a serious unwaivable crime, waiver authority should be
interpolated because the crime was also one of moral turpitude.
Indeed, the worse the crime, the stronger the argument would be.
It is not the business of the courts to tell Congress
what to do about public policy choices, but we are entitled to warn
when the machinery that we help administer is breaking down. The
current structure of deportation law, greatly complicated by rapid
amendments and loop-hole plugging, is now something closer to a
many-layered archeological dig than a rational construct. The
regime is badly in need of an overhaul.
Affirmed.

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